Karnataka High Court
H Srinivas Pai vs Rathna D Hegde on 1 September, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:31645
RSA No. 339 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 339 OF 2023 (PAR)
BETWEEN:
1. H. SRINIVAS PAI
S/O LATE H. SRIDHAR PAI,
AGED ABOUT 60 YEARS,
2. H. SATHISH PAI
S/O LATE H. SRIDHAR PAI,
AGED ABOUT 59 YEARS,
BOTH ARE THE SONS OF
LATE H. SRIDHAR PAI
RESIDING AT DOOR NO 6-1-14,
BAILUR WARD OF
UDUPI CITY MUNICIPALITY
OPP. TALUK OFFICE, UDUPI - 576 101.
...APPELLANTS
Digitally signed
by SHARANYA T
Location: HIGH (BY SRI YESHU MISHRA, ADVOCATE FOR
COURT OF SRI SANDEEP LAHARI & SMT. DEEPIKA JOSHI, ADVOCATES)
KARNATAKA
AND:
1. RATHNA D. HEGDE
AGED ABOUT 71 YEARS,
D/O LATE H. VITTAL PAI,
W/O DAMODAR HEGDE,
RESIDING AT 2C,
POOJAPURA APARTMENTS,
130 ST. MARY'S ROAD,
CHENNAI - 600 018.
-2-
NC: 2023:KHC:31645
RSA No. 339 of 2023
2. LATHA HARSHA CHANDRASHEKAR
AGED ABOUT 61 YEARS,
D/O LATE H VITTAL PAI,
W/O HARSHA CHHANDRASHEKAR,
HULAGADRI 418, 11TH MAIN
1ST CROSS, SARASWATHIPURAM
MYSORE - 570 009.
...RESPONDENTS
(BY SRI A. RAVISHANKAR, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 28.09.2022
PASSED IN R.A.No.14/2022 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 03.12.2021
PASSED IN FDP NO.8/2011 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, UDUPI,
ALLOWING THE PETITION FILED UNDER ORDER XX RULE 12
AND 18 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission.
Heard the appellants counsel and also the counsel
appearing for the respondents.
2. The factual matrix of the case of the parties are,
originally suit is filed for the relief of partition in
O.S.No.15/1991 wherein 1/3rd share is claimed and delivery of
the same to the plaintiffs with the share of income from
NC: 2023:KHC:31645
RSA No. 339 of 2023
12.02.1990 till delivery of the same. The suit of the plaintiffs
was decreed granting 1/3rd share in the plaint 'A' schedule
property and accordingly the defendants are directed to divide
the plaint 'A' schedule property into 3 equal shares by metes
and bounds and to allot 1/3rd share to the plaintiffs.
Consequently, FPD No.8/2011 is filed wherein Commissioner
was also appointed and in terms of the Commissioner's report,
he got measured the property and demarcated the property.
3. The Trial Court having considered the Court
Commissioner's report, accepted the report and ordered to
draw the final decree and drawing of final decree is based on
the Commissioner's report dated 21.8.2015 and also further
Court Commissioner's report dated 19.7.2019 and sketch. After
taking necessary stamp duty from the concerned parties, 'A'
schedule of Commissioner's report dated 21.8.2015 allotted to
the share of the plaintiffs and 'B' and 'C' schedule property in
terms of the Commissioner's report dated 21.8.2015 allotted to
the share of respondents/defendants. 'D' schedule reserved as
road for access to all the 'A' to 'C' schedule lands as per
Commissioner's report dated 21.8.2015. The parties are also
NC: 2023:KHC:31645
RSA No. 339 of 2023
directed to remove 8 coconut trees and 3 jack fruit trees and
compound wall touching the Tar road as stated by the
Commissioner. Further report dated 19.7.2019 for enjoying the
'A', 'B', 'C', schedule property for the respective sharers. The
respondents are also directed to allow the appellants to draw
water by installation of necessary pipe connecting to the pipe
located in 'C' schedule property. The same is challenged in
R.A.No.14/2022 and the First Appellate Court having
considered the grounds urged in the appeal formulated the
points, whether the scheme of partition submitted by the Court
Commissioner is not proper and whether the impugned order of
the Trial Court is perverse, capricious and unsustainable under
law. Is there any necessity to intervene in the impugned order
of the Trial Court. The First Appellate Court having reconsidered
the material available on record including considering the
Commissioner report and also considering the 'A', 'B', 'C',
schedule as well as 'D' schedule property, which is pathway
and the same is part and parcel of a single piece of land i.e. 'A',
'B', 'C' properties and also the 'D' schedule property and
discussed in detail in paragraph Nos.15, 16, 17 and 18 and
turned down the claim of the appellants herein to provide 7.5
NC: 2023:KHC:31645
RSA No. 339 of 2023
meters road i.e. 'D' schedule property and dismissed the appeal
in coming to the conclusion that the Trial Court order not
warrants any interference and also taken note of the property
which is the single property and located attached to the main
road where there is a provision made to 5 meters road which
leads to 'B' and 'C' schedule property and dismissed the appeal.
Hence, the present second appeal is filed before this Court.
4. The main contention of the counsel appearing for
the appellants that the judgment dated 28.09.2022 is perverse,
erroneous and liable to be set aside and the First Appellate
Court has not considered the grounds urged by the appellants
in its proper perspective.
5. The counsel also would vehemently contend that,
the First Appellate Court has failed to set aside the final decree
by rejecting the unjust, unfair, inequitable, unreasonable and
ambiguous report filed by the Court Commissioner. It has
ignored the fact that the Court Commissioner on his own
showing grossly erred in dividing the property in question
without properly valuing the shares carved out by him having
regard to the frontage, valuation, proximity to the main road.
NC: 2023:KHC:31645
RSA No. 339 of 2023
6. It is also contended that the schedule property has
been divided into 3 equal shares by the Commissioner in the
FDP Proceedings of 14 ½ cents each. A perusal of Annexure C,
C1 and C2 would show that, 'A' schedule property therein
abutting the main road has fallen to the share of the
respondents, 'B' and 'C' schedule property which are at the rear
portion has fallen to the share of the appellants and 'D'
schedule property is a pathway to facilitate ingress and egress
to the 'B' and 'C' schedule properties and for the common use
of the appellants and the respondents. The impugned order
fails to consider that the Court Commissioner's report does not
disclose the value of the schedule property and the effect of
partition on the value of the property.
7. The counsel also vehemently contend that the First
Appellate Court fails to consider that the 'D' schedule property
i.e. 5 meter pathway left to the use of the appellants is
impractical and unfavourable to the appellants. The 'B' and 'C'
schedule property is left without sufficient ingress and egress
thereby reducing its value and limiting the options for future
development and optimal utilization of the property. It is also
contended by the counsel that, as per the Zonal Regulations
NC: 2023:KHC:31645
RSA No. 339 of 2023
and Master Plan prepared by the Udupi Urban Development
Authority, pathway of minimum 7.5 meters is necessary,
without which development of the property is not possible.
Without considering the same, the Court Commissioner has
arbitrarily provided for 5 meter pathway, according to which
the final decree has been passed by the Trial Court is
erroneous, perverse and Appellate Court also failed to consider
the same and hence, it requires interference. The counsel also
placed the rough sketch document before the Court while
arguing the same.
8. Per contra, the counsel appearing for the
respondents would vehemently contend that both the Trial
Court and the First Appellate Court while accepting the
Commissioner's report taken note of the Commissioner's report
wherein clearly demarcated the property as 'A', 'B', 'C' and also
proposed internal road is to the extent of 5 meters which
comes around 16 ½ feet and the Commissioner's report was
not objected by filing statement of objections before the Trial
Court. Only adduced the evidence and suggestions are made
that 7.5 meters road is ideal to the property of 'B' and 'C'
schedule property and Court has to take note of the F.A.R. and
NC: 2023:KHC:31645
RSA No. 339 of 2023
when the objection is not filed to the Commissioner's report,
now they cannot contend the same. Even without any
objections both the Courts dealt with considering the material
on record and also taken note of the Commissioner's report.
The counsel brought to notice of this Court paragraphs No.15,
16, 17 and also 18 with regard to the very claim made by the
appellants herein to the extent of 7.5 meters road and the
same was not accepted and rejected the claim of the appellants
herein. The counsel appearing for the respondents also brought
to notice of this Court the finding given by the Appellate Court
also in paragraphs No.15, 16 and 17, wherein detailed
discussion was made with regard to requirement of 7.5 meters
of pathway to reach his property which he has demanded and
also taken note of the property is a single piece of property and
the same is also a private property and also comes to the
conclusion that, 5 meters of road will be more than 16 feet
width over which the appellants will also have right of ingress
and egress and the very claim of 7.5 meters of road as per
Urban Development Rules and FIR policy cannot be considered
by this Court and rejected the same. Both the Courts have
given the finding based on the material on record and the same
NC: 2023:KHC:31645
RSA No. 339 of 2023
is not suffers from any perversity and it does not requires any
ground to interfere with the finding and no ground to admit and
frame substantive question of law by admitting the second
appeal.
9. Having heard the respective counsel and also on
perusal of the material available on record, it is not in dispute
that the suit is filed for the relief of partition in the year 1991,
almost 32 years have been elapsed and also it is the
undisputed fact that even parties have also approached the
highest Court of this Country i.e. the Apex court and ultimately
the judgment was delivered in O.S.No.15/1991 vide order
dated 28.8.2010 and thereafter the FDP proceedings also
initiated in FDP No.8/2011 and both the parties have heard
while passing the final decree petition. It is not in dispute that
the Commissioner was appointed before the Final Decree
Petition No.8/2011 and Commissioner is also submitted his
report. Admittedly, no objection is filed to the Commissioner's
report with regard to the claim of 7.5 meters as claimed in this
appeal and also evidence has been led before the Trial Court
with regard to the claim of 7.5 meters and the same has been
considered by the Final Decree Petition No.8/2011 particularly
- 10 -
NC: 2023:KHC:31645
RSA No. 339 of 2023
in paragraph No.18. Considering the 'A', 'B', 'C' schedule
property and road provided to the said property which is
marked as 'D' schedule as road and also the Trial Court taken
note of the contention of the respondents that Court
Commissioner should have shown 7.5 meters road. The Court
Commissioner already noted that 8 coconut trees and 3 jack
fruit trees have to be removed for the enjoyment of their
respective properties and compound wall has to be removed to
the extent of width of the road to freely enter 'D' schedule
road. So far as 'Well' in respect of 'C' schedule property is
concerned, the same is also taken note of and hence, the claim
with regard to 7.5 meters road was declined to grant in favour
of the appellants. Being aggrieved of the said order, an appeal
is filed and in the appeal also the very same ground has been
urged by the appellants and the same is also considered in
paragraph No.15 with regard to the claim of 7.5 meters of
road.
10. The counsel also would vehemently contend that
the Zonal Regulation and Building Bye-law standards for roads
is 7.5 meters, streets in residential area category of streets,
minimum right of way and admittedly the present suit schedule
- 11 -
NC: 2023:KHC:31645
RSA No. 339 of 2023
property is a private property and the same is a single piece of
land which also measures 14 ½ cents and the same has been
divided into three parts as 'A', 'B', 'C' property. It is also
important to note that when the Commissioner went to the spot
and inspected, measured the same and also divided the same
as 'A' to 'C' schedule properties and also earmarked 'D'
schedule as pathway in order to ingress and egress the 'B' and
'C' schedule property and the said fact is also taken note of by
the First Appellate Court and having taken note of 5 meters is
provided as 'D' schedule as road taken note of it will be more
than 16 feet in width over which the appellants are also right of
ingress and egress the pathway i.e. 'D' schedule property is for
common use of appellants and respondents and when the
property itself is small holding, the contention of the
respondents that they require 7.5 meters of road as per Urban
Development Rules and F.A.R. policy cannot be considered by
this Court. The Appellate Court also taken note of the nature of
the property as well as the entire extent of the property
wherein the same has been divided as 'A', 'B', and 'C' schedule
property and road is also for 5 meters will be more than 16 feet
in width and easily the two vehicles can move at a time even
- 12 -
NC: 2023:KHC:31645
RSA No. 339 of 2023
including the truck and the same is also observed in the order.
When such concurrent finding is given by the Trial Court in
Final Decree Proceedings as well as the First Appellate Court
has taken note of 5 meters road has already been provided in
order to reach the property of 'B' and 'C' schedule property and
the same is around more than 16 feet and the said road is also
made in order to access the 'B' and 'C' schedule property,
which is marked in the Commissioner's report. When such
being the case, the very contention of the appellants counsel
ought to have been provided 7.5 meters of road cannot be
accepted and the said contention was also not taken at the first
instance when the Commissioner's report was filed. Only during
the course of evidence the said contention was raised and in
writing while filing objections to report not took the contention,
it appears the said contention is taken after thought during the
course of evidence and if really the said 5 meters of road
causing inconvenience ought to have been taken in the
objection statement itself and when such being the case, even
when the private property is divided as 'A', 'B', 'C' schedule
property and 5 meters has already earmarked to ingress and
egress the 'B' and 'C' schedule property and the very
- 13 -
NC: 2023:KHC:31645
RSA No. 339 of 2023
contention of the counsel that F.A.R. will be more in respect of
the property which is abutting to the main road cannot be
accepted at this stage when the Trial Court and First Appellate
Court also having taken note of the fact that 5 meters road is
enough for ingress and egress of the property of 'B' and 'C'
schedule property and the said contention of the appellants
counsel cannot be accepted. Both the Courts have taken note
of the location of the property and also the entire measurement
of the property and the same has been divided as 'A', 'B', and
'C' schedule property and allotted the said property and now
cannot contend that to provide 7.5 meters of road contending
that Zonal Regulation Act is applicable and the said contention
also cannot be accepted for the reason that the standard for
roads is concerned, streets in residential area category of
streets is concerned and this provision is made in a private
property into ingress and egress of the property belongs to the
parties and this property belongs originally single piece of
property and provision is made to access the land of 'A', 'B',
and 'C' property, which has allotted in favour of the appellants
is concerned and hence the very contention that it requires 7.5.
meters in terms of the Zonal Regulation cannot be accepted
- 14 -
NC: 2023:KHC:31645
RSA No. 339 of 2023
and hence, I do not find any error committed by the Trial Court
and First Appellate Court and not committed any perversity in
considering the case of the appellants and taken note of the
existence of the property and road provided to the parties
taken note of interest of all the parties and hence, I do not find
any ground to admit and to frame any substantive question of
law in the second appeal.
11. The counsel for the appellants also contend that in
the Commissioner's report in respect of 'D' schedule property
kept as a common road to enter into the property 'B' and 'C'
schedule. The counsel would vehemently contend that the said
property exclusively for the use of 'B' and 'C' property and no
such report is filed by the Commissioner that the same should
be used exclusively by the owners of the 'B' and 'C' schedule
property and it is only mentioned as 'D' schedule property kept
as a common road to enter into the property of 'B' and 'C'
schedule property and the same cannot be made as exclusively
for the use of 'B' and 'C' schedule property.
- 15 -
NC: 2023:KHC:31645
RSA No. 339 of 2023
12. In view of the discussions made above, I pass the
following.
ORDER
Appeal is dismissed.
Sd/-
JUDGE
RHS/AP
